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Monday, October 20, 2014

I am very pleased to announce that The Privacy and IP Law Blog is in the process of moving to
WordPress, and to a dedicated domain – PrivacyandIPLawBlog.com!The blog will operate on both the Blogspot.com location and on the new location for a few months while
all the kinks are worked out.Ultimately, the RSS Feed and subscriber links will also move to WordPress.

Why the switch?

Well, for the past year or so, my traditional way of
blogging (writing the material offline, double-checking all of the hyperlinks
before publication, then posting in draft form, etc.) has been disrupted by
some updates within MS Word that appear to now make it impossible to publish
offline to a Blogger.com blog.

Specifically, I can no longer write the posts in Word and
update them to the blog for further editing and customization, which has required online access more consistently in order to publish (not always easy when traveling!).I’ve attempted to find fixes or patches to this issue – but it appears even
though this concern is somewhat common, there is no fix.The discussion boards are rich with
complaints about this recent modification to the interactivity between Blogger
(owned by Google) and MS Word (owned by Microsoft) – with no remedies.

As a result, my ability to post in a streamlined,
time-efficient way has been disrupted.

Hence, fewer posts.

So, after researching for the past few months to find an
alternative, I’ve decided to register my own domain and host it through
WordPress.We’ll give this a try for a
while and see how it goes.With any
luck, I’ll be able to write more frequently, without as many administrative
headaches, and keep this a robust site.

On October 9, 2014, a class action complaint was filed in
the U.S. District Court for the Northern District of California alleging that
LinkedIn violated the Fair Credit Reporting Act, 15 U.S.C. §
1681 et seq., (“FRCA”) by offering to subscribers reports containing “Trusted
References” without complying with the FCRA’s requirements to keep the data
safe from disclosure. Sweet v. LinkedIn Corp.,
Civ. A. No. 5:14-cv-04531 (N.D. Cal. filed Oct. 9, 2014) (available at Law360 - subscription required).Specifically, the complaint alleges that LinkedIn: 1) failed
to comply with the certification and disclosure requirements of the FRCA for
credit reporting agencies who furnish consumer reports for employment purposes;
2) failed to maintain reasonable procedures to limit the furnishing of consumer
reports for the purposes enumerated in the FRCA and to assure the maximum
possible accuracy of these reports; and 3) failed to provide the notices
required by the FRCA to users of the consumer reports.Id.
at 2.Plaintiffs seek both damages for
past violations and injunctive relief to prevent the continued misuse of these
reports in violation of the FRCA.Id.These “reference reports” compile information about “people
in your network who can provide reliable feedback about a job candidate or
business prospect” – including a list of others in your network who worked at
the same company as the job candidate during the same time period.Id.
at 7 (citing LinkedIn’s Premium Help Center); see alsoTrusted
References for Job Candidates (last updated 4/21/14); Reference
Search (last updated 11/27/13).In
addition, these reference reports encourage the potential employer to contact
these references either through a formal Introduction or through inMail – both of
which are communication methods available to LinkedIn members.Compl.at
7.

Notably, LinkedIn users are not notified when a potential
employer requests one of these reference reports about them.Id.
at 8.As a result, the complaint
concludes:“any potential employer can
anonymously dig into the employment history of any LinkedIn member, and make
hiring and firing decisions based upon the information they gather, without the
knowledge of the member, and without any safeguards in place as to the accuracy
of the information that the potential employer has obtained.”Id.

In essence, the complaint alleges that LinkedIn has “created
a marketplace in consumer employment information, where it sells employment
information, that may or may not be accurate, and that it has obtained in part
from unwitting members, and without complying with the FRCA.”Id. at
9.In all, the complaint alleges
five counts of FRCA violations, seeks damages and injunctive relief, and seeks
a jury trial.

Next Steps

LinkedIn
has the option of answering the complaint or making any one of a number of
12(b) motions to challenge the sufficiency of the complaint.It may take some time before this issue is
ripe for decision (any decision) by the court.

About Me

I am an IP attorney practicing with Eckert Seamans Cherin & Mellott in their IP practice in the Philadelphia ofice. You can also follow me on Twitter: @PaTMLawyer. PLEASE NOTE: ALL OF THE VIEWS EXPRESSED IN THIS BLOG ARE MINE ALONE, AND DO NOT NECESSARILY REFLECT THE VIEWS HELD BY OTHER ATTORNEYS IN THE FIRM.

Disclaimer of Legal Advice

Please be advised that nothing in this blog constitutes legal advice. It is merely an analysis of some of the issues raised by particular events or statutory developments. If you have particular concerns that you wish to have addressed, please contact a lawyer directly so that your specific circumstances can be evaluated.